Opinion
525508
04-12-2018
In the Matter of David ORTIZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
David Oritz, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
David Oritz, New York City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Mulvey and Pritzker, JJ.
MEMORANDUM AND JUDGMENTProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Following the receipt of confidential information that petitioner was in possession of a weapon, a cube search was performed and a seven-inch sharpened metal rod was found secreted under some clothing on the bottom shelf of petitioner's locker. He was subsequently charged in a misbehavior report with possessing a weapon and possessing contraband. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was upheld on administrative appeal, with a reduction in the penalty assessed. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony from the correction officers who performed the search and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Shearer v. Annucci , 155 A.D.3d 1277, 1277, 65 N.Y.S.3d 249 [2017] ; Matter of Baez v. Venettozzi , 155 A.D.3d 1231, 1232, 64 N.Y.S.3d 735 [2017] ). Inasmuch as petitioner was already out of his cube at the time of the search, he was not improperly denied the opportunity to observe it (see Matter of Wallace v. Annucci , 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Mason v. Annucci , 153 A.D.3d 1013, 1014, 56 N.Y.S.3d 906 [2017] ). Contrary to petitioner's contention, the Hearing Officer was not obligated to independently assess the credibility of the confidential information, as the determination of guilt was based upon the actual discovery of the weapon (see Matter of Clark v. Smith , 155 A.D.3d 1232, 1233, 63 N.Y.S.3d 276 [2017] ; Matter of Mason v. Annucci , 153 A.D.3d at 1014, 56 N.Y.S.3d 906). Finally, we find that the misbehavior report provided petitioner adequate notice of the charges against him, thus affording him an opportunity to prepare a defense (see Matter of Robinson v. Lee , 155 A.D.3d 1169, 1170, 62 N.Y.S.3d 820 [2017] ; Matter of Caraway v. Annucci , 144 A.D.3d 1296, 1297, 45 N.Y.S.3d 221 [2016], lv denied 29 N.Y.3d 903, 2017 WL 1223645 [2017] ). Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Egan Jr., Devine, Mulvey and Pritzker, JJ., concur.